A year ago the European Parliament rejected ACTA – a real milestone in the fight to bring some balance to copyright, since it was the first time that a major international treaty was thrown out in this way, largely because of its one-sided and disproportionate approach to that area.
The European Commission was obviously rather taken aback by that, but its response turned out to be disappointing. Instead of examining the role of copyright in the digital age in a thoroughgoing way, it launched what it called its "Licences for Europe" (L4E) initiative:
Online there are new ways of providing, creating and distributing content, and new ways to generate value. The emergence of new business models that use the internet to deliver content represents both a challenge and an opportunity for the creative industries, authors and artists. The digital economy has been a major driver of growth in the past two decades, and is expected to grow seven times faster than overall EU GDP in coming years. The aim of the European Commission is to ensure that copyright and licensing stay fit for purpose in this new digital context.
But the very name gives the game away: this wasn't about finding new solutions, but enforcing old ones through yet more restrictive licences. And although the Commission called this a "Structured stakeholder dialogue", it was nothing of the kind. For example, 75% of the group discussing user-generated content – which, you might expect would focus on those users – turned out to be from the copyright industry.
Similarly, those discussing the important new area of text and data mining – essentially analysing and comparing large quantities of pre-existing digital texts – found so many constraints being placed upon them that it was simply not worth continuing, and they withdrew their participation from the whole process, for reasons they explained in a letter to the Commission [.pdf].
Another group concerned about developments here is Copyright for Creativity:
At a time when the copyright public policy debate tends to focus exclusively on enforcement, we believe that it is time for a discussion in the European institutions on how to ensure that copyright fully supports innovation, creativity, competition, and the public interest. Now is the time for a constructive policy agenda to ensure copyright meets the needs of the 21st century.
It has just released its Declaration "Licences for Europe: The Right to Read Must be the Right to Mine", which points out that the Commission's framing of the debate was wrong from the start. As the Declaration says:
Exceptions and limitations serve the public policy goal of securing access to digital content; an outcome that should not be left entirely to the market. The premise of the L4E WG4 appears to be that additional licenses are required for computers to ‘read' and analyse the content for which universities and other entities have already paid large licensing sums.
And yet participants were not even allowed to discuss exceptions and limitations: the Commission had already decided that the only acceptable solution to copyright's many and varied problems was licensing and yet more licensing.
The Copyright for Creativity therefore offers four suggestions for "rescuing the credibility" of the Commission's L4E initiative:
1. Change the mandate given to the entire L4E process, so discussions go beyond the model of licensing and properly incorporate alternatives, to acknowledge the fact that copyright should be made more flexible to take into account changes to modes of accessing information, business practices, educational needs and of safeguarding cultural heritage that have occurred since the 2001 Information Society Directive.
2. Ensure that stakeholders that have been absent from the process since the start or that have left it since take part in it.
3. Ensure that, at European Commission level, all relevant DGs are included with an equal status, ranging from DG Communications Networks, Content and Technology (DG CONNECT), DG Internal Market and Services (DG MARKT), DG Education and Culture (DG EAC) and DG Research and Innovation(DG RTD).
4. Ensure that the process operates in full transparency moving forward.
Those seem to me to be absolutely right – and absolutely reasonable. If the European Commission is truly serious about making copyright fit for the digital age, and enabling European companies and institutions to benefit fully from the power of text and data mining, it should implement these proposals immediately. If it doesn't, we will know that it has no real interest in moving forward – and that it has apparently already forgotten what happened a year ago today.